Alongside growing controversy over judicial nominations, court reform and Covid-19 policies, American law is in the midst of a little-noticed paradigm shift in courts’ treatment of public health measures.
The Republican Party’s campaign to take over the federal and state courts is quietly upending a long and deeply embedded tradition of upholding vital public health regulations. The result has been a radically novel and potentially catastrophic sequence of decisions blocking state responses to the coronavirus pandemic.
For centuries, American constitutional law granted state governments broad public health powers. “Salus populi suprema lex,” the old saying went: The health of the people is the supreme law. Such authority went back to the beginning of the Republic. In the famous 1824 case of Gibbons v. Ogden, Chief Justice John Marshall defended the “acknowledged power of a State to provide for the health of its citizens.” States, he explained, were empowered to enact “inspection laws, quarantine laws” and “health laws of every description.”
Lemuel Shaw of Massachusetts, who was arguably the most respected state judge of the 19th century, supported vast public health powers and described states’ authority to control epidemics as central to the sovereign power of government. The Alabama Supreme Court agreed, citing the old dictum of salus populi, and courts in states like Georgia and Louisiana followed. In New York, the state’s highest court upheld disruptive health regulations like a ban on burials in urban church cemeteries. After the Civil War, New York’s courts upheld the Legislature’s decision to vest local boards with “absolute control over persons and property, so far as the public health was concerned.”
In 1900, when a suspected outbreak of bubonic plague led San Francisco authorities to quarantine the city’s Chinatown neighborhood, the U.S. Court of Appeals for the Ninth Circuit struck down quarantine and inoculation provisions that irrationally targeted Chinese residents, but ratified the city’s power to quarantine in general.
Five years later, the U.S. Supreme Court in Jacobson v. Massachusetts upheld mandatory vaccination programs. States, the court ruled, were empowered to establish general regulations “as will protect the public health.” As in the two Chinatown cases, however, the court aimed to preserved its authority to intervene in narrow circumstances. Justice John Marshall Harlan’s opinion observed that certain “arbitrary and oppressive” vaccinations might be unconstitutional.
Modest and careful judicial intervention was the norm in courts across the country. When courts in Illinois, Kansas, Michigan and Wisconsin overturned policies prohibiting unvaccinated children from attending school, for example, they did so on the ground that their state legislatures had not authorized such policies. Such decisions respected the salus populi principle by leaving the legislatures empowered to mandate vaccination if they saw fit to do so.
The basic outlines of this approach remained in place for more than two centuries. Today, however, the tradition of salus populi is in collapse. In state and federal courts alike, Republican-appointed and Republican-elected judges are upsetting the long-established consensus.
This month, a bare majority of four Republican-appointed justices on the Michigan Supreme Court struck down the state’s 75-year-old emergency powers law as an “unlawful delegation of legislative power to the executive.” In dissent, Chief Justice Bridget McCormack (who was endorsed by Democrats when she campaigned for election to the court) correctly identified the majority’s reasoning as “armchair history” that set aside decades of precedent.
Last month, a federal district judge in Pennsylvania appointed by President Trump struck down the state’s business closure rules and its limits on gatherings. The judge in the case, William Stickman, revived hoary ideas about freedom of contract and laissez-faire economic policy that once led the courts to strike down protective labor legislation like wage and hour laws.
And back in the spring, four justices connected to the Republican Party on the Wisconsin Supreme Court overturned their state’s common-sense emergency Covid-19 rules over the dissents of three colleagues.
The U.S. Supreme Court threatens to get into the action, too. In May, four conservative justices (Clarence Thomas, Samuel Alito, Neil Gorsuch and Brett Kavanaugh) dissented from an order in South Bay United Pentecostal Church v. Newsom allowing California’s Covid-19-related restrictions to remain in place for gatherings at places of worship. Then, in Calvary Chapel Dayton Valley v. Sisolak, decided at the end of July, those same justices dissented from a similar order leaving Nevada’s restrictions intact.
Next month, the court is scheduled to hear arguments on a startling and widely criticized decision from the U.S. Court of Appeals for the Fifth Circuit in Texas last year that offers yet another opportunity to strike down the Affordable Care Act. The health care of millions could be cast into question even as the pandemic rages.
All of this is a sharp departure from a long history of judicial solicitude toward state powers during epidemics. In the past, when epidemics have threatened white Americans and those with political clout, courts found ways to uphold broad state powers. Now a new generation of judges, propelled by partisan energies, look to deprive states of the power to fight for the sick and dying in a pandemic in which the victims are disproportionately Black and brown.
The results are already devastating.
John Fabian Witt is a law professor at Yale and the author of the forthcoming “American Contagions: Epidemics and the Law From Smallpox to Covid-19.”
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